A few years ago, an interdisciplinary committee of 17 members — all approved by the party heads of both the Kansas House and Senate, the chief justice of the Kansas Supreme Court, and then-Gov. Sam Brownback — was formed as the Kansas Juvenile Justice Workgroup. This group of professionals met and signed off on a package of 40 policy recommendations that were put in front of the Kansas Senate. They ultimately led to Senate Bill 367, which Brownback signed in 2016 to reform Kansas’ juvenile justice code.
Kansas 18th Judicial District Judge Kevin M. Smith was correct when he wrote in a recent Star commentary that our work group, upon review of the data available at the time, determined that the state’s juvenile detention facilities were being greatly overused. Numbers from 2014 showed that in 30% of instances when juveniles were taken into the criminal justice system, they ended up detained — far exceeding the national estimated averages of 21%. Additionally, the data we studied showed us a 27% increase over a decade in the number of juvenile offenders kept in custody after the adjudication of their cases. All of this was taking place while both local and national crime rates were falling significantly.
The work group reviewed data, social science and adolescent brain development science. This led us to the determination that detention of young offenders is not an effective tool for reducing recidivism. Pioneering work by esteemed adolescent psychologist Laurence Steinberg and others shows that the developing brains of teenagers are not the same as adult brains. One of the biggest differences is a youth’s inability to adequately perceive future consequences. The threat of detention in the future is not an effective deterrent to unwanted behaviors. Instead, incentives are far more likely to bring about desired behaviors.
We recommended a maximum of 30 days detention per case, as well as the requirement of a court finding that the youth offender poses imminent danger to others as a prerequisite for that detention. As passed, SB 367 changed the law to allow for sentences of 45 days maximum, and required a finding that the juvenile is a “danger to others or property of others." The language in the statute is already a dilution of the recommendations made by the work group, which was based on our data and systems analysis.
No evidence whatsoever points to any changes brought about by SB 367 having caused an increase in crime rates or in recidivism. Our group looked at what actually works to reduce recidivism, and then created an approach that would work for all youth in Kansas, while retaining discretion to do things differently when necessary. This approach is not “cookie-cutter,” as Smith wrote. To the contrary, it is well reasoned and backed by state data and social science.
Fearmongering about crime has long been the rationale behind oppressive adult sentences. Extending that mind-set to children is immoral. The law in Kansas has long been that children do not commit crimes, but instead they commit delinquent acts. This distinction is vital to understanding the differing goals of the adult criminal code and the juvenile code. Giving judges the ability to imprison children as young as 10 for their inability to complete the terms of probation may give the juvenile justice system teeth, but those teeth will only further injure the children in the system.
Trent H. Wetta is a juvenile defense attorney in Wichita, Kansas. He was a member of the Kansas Juvenile Justice Workgroup formed in 2015.